SOLICITOR-GENERAL OF NEW ZEALAND V INWOOD AND TOMLINS HC CHCH CIV 2008-409-000530

SOLICITOR-GENERAL OF NEW ZEALAND V INWOOD AND TOMLINS HC CHCH CIV 2008-409- 000530 18 November 2008IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2008-409-000530BETWEEN SOLICITOR-GENERAL OF NEW ZEALAND Applicant AND SIMON JOHN INWOOD AND RAEWYN ELIZABETH TOMLINS Respondents Hearing: 18 November 2008 Counsel: K J Beaton for Applicant D C Ruth for Respondents Judgment: 18 November 2008RULING OF FOGARTY J ON FORFEITURE APPLICATION Simon Inwood[1] The Solicitor-General has filed an application for forfeiture order under s 15(1) of the Proceeds of Crime Act 1991 over a property situated at 857 Main North Road, Christchurch, and has also sought a pecuniary penalty order under s 25(1) of the Act in the amount of $68,890 being the cash found in the home. [2] The second application is not opposed and I make the pecuniary order accordingly. [3] It is material to note that Mr Inwood has advised the Court that this very large sum of money found in his home represents the proceeds of his growing and the Crown have also assessed the monetary proceeds of the growing for this offending inbroadly the same amount. It is, in my view, material when addressing the application for forfeiture of the home to keep in mind that the principal purpose of the Proceeds of Crime Act has been achieved by the pecuniary penalty order whereby the Crown receives the police estimate of the proceeds of this criminal conduct which is the subject of this application today. [4] Mr Inwood is one of at least two other co-offenders, his partner and his mother, in this growing operation. It was a commercial cannabis operation and the bedroom of the family home was being used. The home is also occupied by his partner and their two young children, a daughter nearly four, and a son, 17 months old. The couple own the home but like most young couples it is heavily mortgaged and it is assessed to have an equity value of $20,000 after taking into account the indebtedness charged over the home. [5] I have received very full submissions from the Crown, for which I am most grateful, including an analysis of the case law. I do not intend to go through the case law in any degree, except to say that I have found the decision of the Court of Appeal in Lyall v Solicitor-General [1997] 2 NZLR 641 more helpful than the earlier opinion of the Court of Appeal in R v Dunsmuir [1996] 2 NZLR 1principally because the later decision in Lyall factors in the obligation imposed by Parliament in the New Zealand Bill of Rights Act 1990 to be satisfied that the penalty is not unduly harsh, which tends to, in my view, undercut the dictum inDunsmuir which referred to this consequence of the Act that if this is draconian that appears to be the intention of the legislation. [6] With that brief preference to follow Lyall I now go through the criteria which the statute obliges me to consider. [7] The first is the use to which the home is ordinarily used and it is plainly principally used as a family home. Included in that, it is the family home of two young children who are not in any way culpable for this offending. [8] The second question is whether any undue hardship is reasonably likely to be caused. I have considered the possibility that the family simply lose the home andgo into rental accommodation. This is not an uncommon consequence and would not be in the category of an undue hardship but it would be in the category of being a hardship. Thirdly I have to consider the nature and extent of the offender's interest in the property and the nature and extent of any other person's interest in it. Mr Inwood has been in partnership with Ms Tomlins for three years. There is a common interest of both of them in the property and she is an offender of significantly less culpability. I then have to consider whether there are any other matters. I am influenced by the fact that the Crown has recovered $68,890 and I think this is a very relevant factor to the exercise of discretion, bearing in mind that although it is not the only purpose, the principal purpose of the Proceeds of Crime Act is to recover the proceeds of crime. [9] Ms Beaton correctly emphasised that proportionality is the key enquiry and I have had regard in preparation for this morning's hearing to the facts of other cases. The facts of this case, in my view, make it seriously arguable for forfeiture but are by no means as strong as other cases in which forfeiture of a home has been ordered. In the end I am left with the conclusion that this application should be dismissed for the reasons which I have just indicated. So the application for forfeiture of the home is dismissed but I confirm the pecuniary penalty is to be paid. [10] Ms Beaton has queried whether I have adequately demonstrated that I have been satisfied that the pecuniary penalty that I have ordered to be paid of $68,890 is not greater than the penalty amount. [11] With reference to s 27 this is a case, as I have recorded above, where I accept the statement of the accused that this did reflect money from the offending and he did say a small amount of savings. But I am satisfied that although it is not possible to assess reliably the total amount received from the offending, it would have been in excess of $68,890 as it is reasonable to infer that some of the commercial receipts would have been spent.[12] Ms Beaton has put a forward a figure of $76,000. I do not think I need to precisely agree that figure. I am satisfied that I am ordering pecuniary penalty which is not greater than the penalty amount for the purpose of s 25.Sharon Inwood[13] I should add for completeness that earlier this morning I dismissed an application for a forfeiture order over the property of Mr Simon Inwood's mother. This application was formally sought but not pressed by Ms Beaton, and rightly so. [14] Mrs Inwood sold cannabis grown by her son from her home. She did this in a relatively small way. There was no growing on the property. She is not in good health. A sale would cause quite undue hardship. It would, even more significantly, produce a disproportionate penalty because it would confiscate the equity in her home. There is no suggestion that that equity is the proceeds of crime. Confiscation of a home cannot be squared with s 9 New Zealand Bill of Rights Act 1990.Solicitors: Raymond Donnelly & Co, Christchurch, for Crown D C Ruth, Christchurch, for Accused, Simon Inwood G R Lascelles for Accused, Sharon Inwood